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27 Law & Phil. 1 (2008)

handle is hein.journals/lwphil27 and id is 1 raw text is: Law and Philosophy (2007) 27:1-34             © Springer 2007
DOI 10.1007/s10982-007-9010-x
(Accepted 15 March 2007)
In The Concept of Law, Hart writes that the history of legal
theory is a history of oscillation between extremes. At one
extreme are those who treat law as a branch of morality, so
that a law's authority depends on its conformity with moral
principles. At the other extreme are those who espouse the
command and predictive theories of law, the first treating law
as the command of a legally unfettered sovereign, the second
viewing law as a prophecy of what courts will do. In The
Concept of Law, Hart tries to find a middle ground between
these extremes by offering a theory of law that is both positivist
and normative. It is normative in the sense that it tries to offer
an account of legal authority and obligation, but positivist in
the sense that it tries to explain law's normativity in terms of
something other than its substantive morality.
In Positivism and Fidelity to Law, Fuller wrote that Hart's
recognition of law's normativity meant that the two had found
common ground. They seemed to agree that it is a characteristic
feature of law that it makes certain behaviour obligatory, that its
purpose is to authoritatively guide human conduct. Once we
recognize this, Fuller argued, we have to abandon the idea that
there is no necessary conceptual connection between law and
morality. Famously, Fuller distinguished between two kinds of
morality, one external and one internal to law's purpose. Law, he
said, can achieve its purpose of guiding human conduct whether
* I wish to thank David Dyzenhaus for his support and helpful com-
ments on earlier drafts as well as the University of Toronto Faculty of Law
for awarding me a fellowship to develop this project.
1 H.L.A Hart, The Concept of Law (Oxford: Oxford University Press,
1994), p. 8.

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